New Lawsuit Attempts to Fix Broken Indiana Property Forfeiture Rules

Indiana permits civil asset forfeiture, where police and prosecutors are able to seize citizens' property if it's connected to a crime, but it has a catch: All the money from forfeitures is supposed to go to the school system. This is according to the state's constitution and is intended to pretty clearly avoid handing police and prosecutors a profit motive. Since they don't get the keep the money for their departments, there's less of an incentive to abuse the tools to try to take property and money from average citizens or to fight having to give it back if it turns out the accused are innocent.

But it turns out this system is not what is actually happening in Marion County, where Indianapolis is situated. A state law gave police and prosecutors permission to deduct law enforcement costs from these seized assets. You can probably guess what happened next. From the Indianapolis Star:

The state law in question is interpreted differently by each county. Some meticulously account for the investigative costs and send the remaining dollars to the school fund. Many do not put money into the school fund. In Marion County, forfeited funds are divided between the law enforcement agency and the prosecutor's office, according to court records.

According to memorandums of agreement between the agencies, the prosecutor's office gets 30 percent of forfeited funds. The remaining 70 percent goes to IMPD or to the Metro Drug Task Force, a group of officers from Marion and neighboring counties, depending on which law enforcement body is involved in an investigation. …

Indianapolis law enforcement officials say asset forfeiture is a tool that allows them to target criminal organizations, and forfeited funds are a small portion of their budgets but are an important source of revenue to train officers and purchase vehicles and equipment. The Metro Drug Task Force in Indianapolis, for instance, is funded almost entirely by forfeited dollars. In an earlier interview with IndyStar, Curry said his agency uses the money to pay for the salary and benefits of deputy prosecutors who specialize in forfeiture cases.

Officials also say forfeited funds do not fully cover their investigative costs.

If you give police permission to deduct their expenses, then they are going to expense as much as they can, aren't they? This isn't new, and it's a known problem in Indiana. Former Reason editor Radley Balko highlighted Indiana law enforcement agencies' dreadful abuse of asset forfeiture tools all the way back in a 2010 issue of Reason magazine.

Today the civil forfeiture-fighting lawyers of the Institute for Justice have stepped in. They are representing Jack and Jeanna Horner, who had two of their vehicles seized after police suspected their son, who was borrowing the vehicles, of using them to transport marijuana. The Horners were never charged with a crime (and the case against the son failed) but fought for months to get their property back.

The Institute for Justice is arguing that the law that's allowing the police to keep the money is a violation of Indiana's constitution and must be struck down:

For far too long, police and prosecutors in Indianapolis have been keeping 100 percent of forfeiture proceeds for themselves. The constitution couldn't be clearer—"all forfeitures" belong to the schools—yet the Indiana school fund hasn't seen a penny of forfeiture money from Indiana's capital since before some current students were even born. Meanwhile, police and prosecutors are siphoning off millions of dollars in civil forfeiture proceeds, violating both the Indiana Constitution and the state's Civil Forfeiture Statute and fueling an increasingly aggressive forfeiture machine.

It's a bit of an unusual angle compared to other fights against civil asset forfeiture. Typically activists are trying to end the practice entirely as a blatant Fourth Amendment violation. In this case, they're just trying to make sure Indiana law enforcement officials follow the state's constitution.That matters because the state's constitution so thoroughly defeats the profit motive for forfeiture that it would essentially be "reform" if the rules were followed properly.